Introduction to

International Law

Law 111 Public International Law

GILBERT R. HUFANA
Professor
 Rationale
• In the contemporary world, almost all social problems are
transnational in nature, requiring a global or regional
solution.
– armed conflicts and control of armaments; civil strifes; energy
crises; trade, investment, and capital flows; exploration of
ocean resources and the use of outer space; environmental
problems; control of epidemics and of illicit traffic in narcotics
and persons; flows of information and data technology
transfer; deprivations of human rights — just to name a few
• One cannot deal with local and national problems
effectively without adequate orientation to the global
context.
 Myths and Realities about
International Law
• There is no international law as such, because
the world community is a jungle where naked
power counts.
• International law is not really law but a form of
international morality or a political doctrine.
• International law is a sham, a political facade
used to justify the expediency of national policy;
international law provides a convenient
justification or pretext for certain conduct of
states.
 Myths and Realities about
International Law
• International law is made to be broken at will
when the vital interests of a sovereign state are
involved.
• International law is weak, without centralized
institutions of lawmaking and law enforcement
(that is, there is no world legislature, no world
police or jails).
• International law is for specialists and is
irrelevant to ordinary people.
 What is International Law?
• Laws of nations
• body of rules and principles of action which are
binding upon civilized states in their relations to
one another
• consists of rules and principles of general
application dealing with the conduct of states and
of international organizations and with their
relations inter se, as well as with some of their
relations with persons, whether natural or juridical
(McKeever, Columbia Law School, 2003)
 What does International Law
includes?
• Preservation of peace
• Governs international agreements & provides
framework for diplomatic relations -
• Use of air, land, sea and other global resources
• Protection of human rights
• Regulation of international commerce & trade
• Regulation & Protection of the environment
• All interests of contemporary international and
even domestic life – facilitates cooperation
 Historical Perspective

• Evidence of treaties between Jews and

Romans, Syrians and Spartans – jus gentium
(common to all men) became the law of the
Roman Empire
• Modern international law was started by Hugo
Grotius (considered the father of modern
international law) – principles were derived
from Roman/Canon Law – “Laws of Nations”
• The “Laws of Nations” was later given the
name of “international law” by Jeremy
Bentham
Cont… Historical Perspective

• Significant milestones:
– The Peace of Westphalia (1648) – established a
treaty based framework for peace cooperation
– Congress of Vienna (1815) – created a
sophisticated system of multilateral political and
economic cooperation
– Covenant of the League of Nations (1920) – ended
World War I
– The League created the International Court of
Justice (ICJ)
– The League failed to prevent WWII hence the
United Nations was founded in 1945
 The Need for Int’l Law

• Growth & dev’t of the society of nations

• Law exist in a society and society cannot exist
without a system of law – “A necessity”
• Most governments of civilized states believe that
they are legally and morally bound by the laws
of nations
 Basis of International Law
• CONSENT
• Express consent in the case of treaties or
conventions
• Implied consent in the case of customary law
• Customary law developed on the basis of this
norm – states ought to behave as they have
customarily behaved
 Sources of International Law

• Article 38 of the International Court of Justice

(ICJ) statute states that:
– “The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply:
• international conventions…
• international custom, as evidence of a general practice
accepted as law
• the general principles of law recognized by civilized
nations
• judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary
means for the determination of rules of law
 Sources of International Law
1. Customary international law/ customary law /
customs
2. Treaties
3. The general principles of law recognized by
civilized nations
4. Judicial decisions
5. Teachings of the most highly qualified writers
and publicists
6. Equity
7. Others
 Customary International Law
• General and consistent practice of states followed
by them from a sense of legal obligation
• Elements:
– Material Factor: how the states behave – the general
and consistent practice of states
– Subjective Factor: why they behave the way they do –
states follow this practice out of a sense of legal
obligation
• Possible for customary law to develop only
between several states or even only two states.
– Ex. The right of Portugal to pass through Indian territory
(ICJ Reports 1960)
Customary International Law

 MATERIAL FACTOR: the general and

consistent practice of states
– Duration – short or long, ancient usage ripening
into a rule of international law
– Consistency - continuity and repetition
– Generality of the practice of states – substantial
– Evidence: treaties, diplomatic correspondence,
statements of national leaders, conduct of states
Customary International Law

 SUBJECTIVE FACTOR: – states follow this

practice out of a sense of legal obligation
 Known as Opinio Juris Sive Necessitatis – the
belief that a certain form of behavior is obligatory is
what makes practice an international rule
 A matter of proof – burden of proving it falls on the
state claiming it
 Customary International Law
• Jus Cogens - also known as peremptory norm
– a fundamental principle of international law which is
accepted by the international community
of states as a norm from which no derogation is
ever permitted
– VCLT, Article 53: “a peremptory norm of general
international law which is accepted by the
international community of states as a whole as a
norm from which no derogation is permitted”
– includes genocide, torture, slavery, terrorism
 Treaties

• A treaty is an agreement between states,

between states and international organizations,
or between international organizations, that is
binding under international law (something
binding under the laws of one state is not
international)
• Treaties are binding and legally enforced upon
the parties to it
• Treaties can be bilateral or multilateral
 The general principles of law
recognized by civilized nations
• General principles of justice closely linked to
natural law
• Based on morality and justice
• Examples:
– Principle of consent
– Reciprocity
– Equality of states
– Validity of agreements
– good faith
 Judicial decisions
• Art 59 of the ICJ Statute: “the decisions of the Court
have no binding force except between the parties
and in respect of that particular case”
• Indirect and subsidiary source
• Stare Decisis does not apply in International Law
• Decisions of the ICJ is highly persuasive in the
international circle and contributed to the formulation
of principles that have become international law
• Decision is not a rule but is a direct evidence that a
rule of international law exists
 Teachings of the most highly
qualified writers and publicists
• Subsidiary source
• Writers – world renowned expert in the field of
international law
• Publicists – institutions which write on
international law
• Serves as a means of determining varying
interpretations of the law
 Equity

• An instrument whereby conventional or

customary international may be supplemented
or modified to achieve justice.
• Art. 38(2), ICJ Statute authorizes the Court to
decide a case ex aequo et bono, if the parties thereto
agree.
• General rules dictated by fairness, impartiality
and justice
• It serves to temper the application of strict rules
 Other supplementary
evidence
• UN Resolutions
– Generally considered recommendatory
– If supported by all states – opinion juris communis
– Reflection of what has become customary international law
• “Soft Law”
– “non-treaty agreements” - commitments made by negotiating
parties that are not legally binding
– International agreements not concluded as treaties therefore
not covered by the Vienna Convention on the Law of Treaties
(VCLT)
– Includes administrative rules in which guide states in relation to
international organizations – may eventually ripen into
customary law
 International Law is a
development in progress
• International law, like all law, is a continuing
process through which the common interests of
the members of the world community are
clarified and secured.
• It seeks to attain a minimum order, in the sense
of minimizing unauthorized coercion, and to
achieve an optimum order, in the sense of the
widest possible shaping and sharing of all values
(respect, power, enlightenment, well-being,
wealth, skill, affection, and rectitude).
 Public vs. Private International
Law
Public International Law Private International Law
- referred to as international law - more commonly called as conflict
of laws
- customs, treaties etc. that is the - domestic law which deals with
basis of interacting with other cases where foreign law intrudes
states in the international arena in the domestic sphere, whether
domestic or foreign law applies
- governs the activities of states - governs the activities of
in relation to other states and individuals, corporations, and
also their relations with other private entities when they
international organizations & cross national borders
individuals
 International vs. Municipal Law
International Law Municipal Law
- governs the relation of - also known as state law or
sovereign independent states national law is the law of state
inter and constitutes a legal or a country
system the rules of which it is
incumbent upon all states to
observe
- regulates the behavior of states - regulates behavior of
individuals
- concerns with the external - internal relations of states and
relations of the states and its its domestic affairs
foreign affairs

- a law between equal sovereign - law of the sovereign over the

states in which no one is individuals subject to the
supreme to the other sovereign rule
 International vs. Municipal Law

• International law and municipal law relates to

each other and some justice considers that both
from a unity being manifestation of single
conception of law while others say that
international law constitutes an independent
system of law essentially different from the
municipal Law.
 International vs. Municipal Law

• Monistic Theory
– origin and sources of international and domestic
laws are the same
– both spheres of law simultaneously regulate the
conduct of individuals and the two systems are in
their essence groups of commands which bind
the subjects of the law independently of their will
 International Law vs. Municipal
Law
• Dualistic Theory
– International law and municipal law are separate and
self contained to the extent to which rules of one are
not expressly tacitly received into the other system.
• Municipal law – product of local custom/legislation
• International law – treaties & customs grown among
states
– The two are separate bodies of legal norms
emerging in part from different sources comprising
different difference subjects and having application
to different objects.
 International vs. Municipal Law

• International law, unless it is made part of the

domestic system, has no role in the settlement
of domestic conflicts.
• Prevailing doctrines:
– Doctrine of Incorporation
– Doctrine of Transformation
 Doctrine of Incorporation

• The Incorporation clause of the Constitution

reads in Section 2, Article II:
The Philippines […] adopts generally
accepted principles of international law as
part of the law of the land. […]
• It is by this provision of the Constitution that the
Constitution incorporates a body of principles of
international law into Philippine law.
 Doctrine of Transformation
• The doctrine of transformation is based upon the
perception of two distinct systems of law
operating separately, and maintains that before
any rule or principle of international law can
have any effect within the domestic jurisdiction, it
must be expressly and specifically 'transformed'
into municipal law by the use of the appropriate
constitutional machinery.
Subjects of International Law

• A subject of international is (1) an individual,

body or entity; (2) recognized or accepted;
(3) as being capable of possessing and
exercising; (4) rights and duties; (5) under
international law. (Dixon)
• States enjoy the fullest personality in
international law
Subjects of International Law
• An entity is a subject of international law if it has
“international legal personality”
• Subjects must have rights, powers and duties
under international law and they should be able
to exercise those rights, powers and duties
• Legal personality also includes the capacity to
enforce one’s own rights and to compel other
subjects to perform their duties under
international law.
Subjects of International Law
1. bring claims before international and national
courts and tribunals to enforce their rights;
2. have the ability or power to come into
agreements that are binding under international
law, for example, treaties:
3. enjoy immunity from the jurisdiction of foreign
courts; and
4. be subject to obligations under international law
(Dixon).
 Object of International Law
• Where there is no direct enforcement of
accountability and an intermediate agency is
needed, the entity is merely an object not a
subject of international law.
• A person or thing in respect of which rights are
held and obligations assumed by the subject.
• while individuals were considered as “objects” of
international law: i.e. individuals could only
benefit from international law, if they acted
through States
•
 Contemporary Concept
• Individuals and international organizations are also
subjects because they have rights & duties under
international law (Liang vs. People, GR No. 125865,
March 26, 2001)
• With the rise of globalization, there has also been a
corresponding shift in the types of participants in
international law. No longer are state actors the
exclusive makers of international law; multinational
corporations, intergovernmental and nongovernmental
organizations, and other such actors play an
increasingly important function in the shaping of
international law.
Subjects of International Law
• Nation-States
• International governmental organizations,
nongovernmental organizations and
associations (including political parties, pressure
groups, and private associations)
• Individuals
 States
• The role of nation-states has been, and continues
to be, predominant at the international level.
• Definition: A community of persons more or less
numerous, permanently occupying a definite
portion of territory, independent of external
control, and possessing an organized government
to which the great body of inhabitants render
habitual obedience
– a territorially organized community that achieves,
or makes claim to, the highest degree of effective
power and authority in the global power process
 States

• Montevideo Convention of 1933 on Rights and

Duties of States:
– “The State as a person of international law should
possess the following qualifications: (a) a
permanent population; (b) a defined territory;
(c) government; and (d) capacity to enter into
relations with other States. ”
– Includes also Self-determination
 A Permanent Population
• Inhabitants of the State
• community of persons sufficient in number
• capable of maintaining permanent existence
• racial, cultural of economic interest does not
matter
• no minimum population is required
 Territory
• Fixed portion of the surface of the earth
inhabited by the people of the State
• That over which an entity exercises permanent
sovereignty
• Defined even if boundaries have not been fully
settled/claimed by another state
• Size is irrelevant
 Government
• That by which an independent society makes
and carries out rules of action which enables
men to live in a social state
• Agency or instrumentality through which the will
of the state is formulate, expressed and realized.
• International law does not specify the form of
government
• Temporary absence of government does not
terminate the existence of a state
• Types: De Facto or De Jure
The Mandate of the Phil. Gov’t
• Art. II, Sec. 4 – “The prime duty of the
Government is to serve and protect the
people…”
• Thus, whatever good is done by government –
attributed to the State; whatever harm is done by
the government – attributed to the government
alone, not the state.
 Effects of Change in Gov’t
• With respect to rights:
– The rights of the predecessor gov’t are inherited in
toto by the successor gov’t
• With respect to obligations:
– If the new government was organized by virtue of a
constitutional reform ratified in a plebiscite,
obligations are completely assumed by the
successor.
– If the new gov’t was established through violence, the
successor may lawfully reject the purely personal or
political obligations of the predecessor
 Sovereignty
• The supreme & uncontrollable power inherent in
a State by which the state is governed.
• Independence from outside control
• Capacity to enter into relations with other states
– dependent on recognition
 Characteristics of
Sovereignty
• Permanent
• Exclusivity
• Comprehensiveness
• Absoluteness
• Individuality
• Inalienability
• Imprescriptibility
 Effects of Change in
Sovereignty
• Political laws are abrogated
– They govern relations b/w the State & the people
• Non-political laws generally continue in
operation
– Regulates only private relations
– Exception: (1) Change by the new Sovereign
(2) Contrary to the institutions of
the new sovereign
 Self-determination
• It is the demand of human beings to form groups and
to identify with groups that can best promote their
pursuit of values in both individual and aggregate
terms.
• Free to determine their political status as well as
their economic, social and cultural development
• All people have the right of self-determination
• The demands of humanity to secure an optimum
freedom and wide sharing of power have been made
under a variety of legalistic labels and contexts.
 Self-Determination
1. Claims involving establishment of a new state—
that is, claims by a group within an established
state to form a new state from part of the
preexisting state
2. Claims not involving establishment of a new state,
notably:
– Claims of a state to be free of external coercion and
interference
– Claims of a state to control its own natural resources
– Claims of a people to overthrow their ineffective rulers
– Claims of a group within a state to enjoy autonomy
 International Law
• International law developed to regulate states
because of:
– the emergence of states
– state interaction
– development of the laws of war
• Purpose for laws of war: it is in the mutual interests
of all states to regulate the conduct of war, and in
trying to agree on rules that will make it unlikely
that war will happen.
 Relationship among States
• States are opaque (billiard ball theory – states
hit each other one the outside but do not
interfere with one another’s internal affairs) and
we don’t really look at what’s inside
– Thus, international law only regulated relations
between states, and did not regulate the internal
affairs of states
• Now, international law is also used to regulate
the internal affairs of states
 Succession of States
• As to territory – capacities, rights and duties of the
predecessor state with respect to that territory
terminate and assumed by the successor state
• As to state property – subject to agreement
• With respect to treaties – the Vienna Convention
is followed
• With respect to public debts – subject to
agreement between states concerned; remains
with the predecessor states
Fundamental Rights of States
• Independence – capacity to provide for its own
well-being and development free from
domination of other states; the right to exercise
the functions of a state
• Equality – equality of legal rights irrespective of
size or power
• Peaceful co-existence – mutual respect for
each other’s territorial integrity and sovereignty,
mutual non-aggression, non-interference in each
other’s affairs and the principle of equality
 Incomplete Subjects
• Fall short of becoming a state by the absence of
an element or two
• Includes but not limited to the following:
– Protectorates
– Federal States
– Mandated & Trust territories
– Taiwan
– Sovereign Order of Malta
– The Holy See
 Protectorates
a protectorate remains an autonomous part of a sovereign state

• a dependent territory that has been granted local

autonomy and some independence while still
retaining the suzerainty of a greater sovereign
state
– Suzerainty: one region or people controls
the foreign policy and international relations of
a tributary state, while allowing the tributary
nation to have internal autonomy
• Dependent states which have control over their
internal affairs but whose external affairs are
controlled by another state
 Protected State

• A protected state was a sovereign country that

had placed itself under the protection of a more
powerful one.
• a state which remains under the protection of
another state but still retains independence is
known as a protected state
 Protectorate vs Protected
state
Protectorate
entity concerned enters into
an arrangement with a state
under which, while separate
legal personality
may be involved, separate
statehood is not
the power to exercise certain
sovereign powers including
all of its international
relations is delegated to
another
Protected State
entity concerned retains its status
as a separate state but enters
into a valid treaty relationship with
another state affording the latter
certain extensive functions possibly
internally and externally.
formal sovereignty remains
unaffected and the entity
in question retains its status as a
state may act as such in the
various international fora
 Protectorate: An Example

• British Protectorate - a territory which is not

formally annexed but in which, by treaty, grant or
other lawful means, the British Crown has
ultimate power and jurisdiction
– British North Borneo
– Brunei
– Malaysian Federation
Protected States:
– Afghanistan, Bhutan, Nepal
 Protectorate: An Example

• The Philippines had once become a US

Protectorate
– Commonwealth of the Philippines (1934–1946):
Under the provisions of the Tydings–McDuffie
Act, the territory would become self-governing
although its military and foreign affairs would be
under the United States.
 Federal States
• Union of previously autonomous entities
• Political authority is divided between two (2)
autonomous sets of governments, one national and
the other subnational, both of which operate directly
upon the people
• Of the eight largest countries in the world by area,
seven—Russia, Canada, the United States, Brazil,
Australia, India, and Argentina—are organized on a
federal basis.
• Federal countries also include Germany, Malaysia,
Mexico, & the United Arab Emirates, among others.
 Mandated and Trust
territories
• Territories placed by the League of Nations under
one or other victorious allies of World War I
• Trusteeship after World War II
– Carolines Dependent states which have control over
their internal affairs but whose external affairs are
controlled by another state
– Autonomous states, vassal states, semi-sovereign or
dependent states
• Marianas and Marshall Islands – under
trusteeship of US
 Taiwan
• De jure part of the People’s Republic of China
(PRC), A non-state territory
• Now called the Republic of China (ROC)
• TPRC has consistently claimed sovereignty over
ROC and asserted the ROC is no longer in
legitimate existence. - One-China Policy
• Today, 20 countries maintain official ties with the
ROC but many other states maintain unofficial ties
through representative offices and institutions that
function as de facto embassies and consulates.
The Sovereign Order of Malta
• a Roman Catholic lay religious order traditionally
of military, chivalrous and noble nature.
• It was founded as the Knights Hospitaller circa
1099 in Jerusalem, Kingdom of Jerusalem, by
the Blessed Gerard, making it the world's oldest
surviving chivalric order.
• Widely considered a sovereign
subject of international law, the order maintains
diplomatic relations with 107 states.
 The Holy See
• also referred to as the See of Rome, is
the ecclesiastical jurisdiction of the Catholic
Church in Rome, the Episcopal see of the Pope, and
an independent sovereign entity
• It is viewed as analogous to a state while administered
by the Roman Curia similar to a centralized
government with the Cardinal Secretary of State as
its chief administrator, and various dicasteries,
comparable to ministries and executive departments.
• informally referred to as "the Vatican” or the "Holy
See“, headed by the Pope, diplomatic relations
 International Organizations

• The cooperation of nation-states occurs not only

at the global level but also at the regional level.
• Interdependence requires that cooperation of
nation-states be carried forward at all community
levels.
• Nation-states create organizations to promote
common purposes through agreement among
themselves
 International Organizations

• serve a dual function in the global constitutive

process: (1) they act as distinctive participants in
decision making and (2) provide necessary
structures of authority for other participants
• The United Nations, the most influential among
international organizations, was created on June 26,
1945.
– to maintain peace and security, to develop friendly
relations among nations, to achieve international
cooperation in solving international problems, and to
be a center for harmonizing the actions of the nations
 International Organizations

• League of Nations following WWI

• United Nations System: FAO, ILO, IMO, IMF,
UNESCO, WHO, WIPO etc.
• WTO – not a part of the UN but provides a
critical function in facilitating international
commerce and trade
 International Organizations
• The U.N. Charter envisages and encourages the
development of regional organizations so that
collaborative arrangements can be made to fit
particular needs of specific regions.
• multilateral regional organizations have been
playing an unprecedented role in many fields,
forming part of the tension between what have
been called the new regionalism and the new
globalism
• African Union(AU), European Union (EU), ASEAN,
APEC etc.
 Non Governmental
Organizations
• the role of nongovernmental groups in
transnational interactions has continued to grow
enormously
• Includes (1) political parties and (2)
nongovernmental organizations and
associations (including pressure groups and
private associations)
 Non Governmental
Organizations
• Political Parties
– organized groups that present comprehensive
programs of policy and seek to place their candidates
in government positions through election
– Some political parties deliberately seek transnational
effects and play roles in intelligence, recommending,
prescribing, invoking, and appraising functions,
having significant effects on the formulation and
application of global policies.
– Chinese Communist Party, Soviet Communist Party,
 Non Governmental
Organizations
• Nongovernmental organizations differ greatly in
membership, size, objective, structure,
geographical reach, available resources,
strategy, and overall effectiveness
• The values pursued by nongovernmental
organizations and associations extend to each
of the basic values: power, respect,
enlightenment, well-being, wealth, skill, affection,
and rectitude.
 Non Governmental
Organizations
• Pressure groups - Organizations that seek
particular power objectives
• Pressure groups, unlike political parties, do not
present comprehensive political programs and
candidates for elective office.
• These NGOs may send representatives to sit as
observers and to speak at public meetings of the
Economic and Social Council and its subsidiary
bodies.
 Non Governmental
Organizations
• Private associations - dedicated primarily to
shaping and sharing values other than power
• corporations and associations that operate
transnationally in finance, transportation,
communication, technology, mining, fishing,
agriculture, manufacturing, wholesaling,
retailing, and other areas of economic life
• they may possess more resources than most
nation-states – great influence in the shaping
and sharing of values, both actual and potential
 Individuals

• One of the dominant historical myths in

international law had been that states, not
individuals, are the only appropriate “subjects” of
international law.
• As international law expanded its concern from
abstract entities of nations and states to real-life
human beings, it ushered in a new era of human
rights, underscoring the central place of human
beings in transnational interaction and the
fundamental dignity and worth of all human
beings.
 Individuals

• The fact remains that the individual is the

ultimate beneficiary even of the remedy of
diplomatic protection.
• Individuals act in the name of, or as
representatives of, organizations and
associations, or they may act simply in their own
right as individuals.
• Individuals are the ultimate actors in all social
processes.
 Individuals
• Example:
– an individual has a right of freedom from torture
under international law and States have a duty
under international law not to torture individuals
or to send them to a country where there is a
likelihood of that person being tortured
Introduction to International Law

END OF LECTURE